Harris v. Boston Private Bank & Trust Co. (In re Harris)

497 B.R. 652, 2013 WL 4482427, 2013 Bankr. LEXIS 3388
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedAugust 20, 2013
DocketBankruptcy No. 12-10295-JNF; Adversary No. 13-1316
StatusPublished
Cited by3 cases

This text of 497 B.R. 652 (Harris v. Boston Private Bank & Trust Co. (In re Harris)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Boston Private Bank & Trust Co. (In re Harris), 497 B.R. 652, 2013 WL 4482427, 2013 Bankr. LEXIS 3388 (Mass. 2013).

Opinion

[654]*654MEMORANDUM

JOAN N. FEENEY, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the Plaintiffs Motion for a Preliminary Injunction. The Plaintiff, Starr Harris (the “Plaintiff’ or the “Debtor”), requests the Court to “reinstate the automatic stay and/or enjoin the defendants, jointly and severally, from any action to complete or reinitiate foreclosure of their mortgages” in aid of an order converting her Chapter 7 case to Chapter 13. Two of the defendants, Just-A-Start Corporation (“JASC”), the holder of a mortgage granted by the Debtor on April 6, 2011, and Boston Private Bank & Trust Company (“Boston Private Bank”), the holder of a first and second mortgage, both dated January 9, 2007, object to the relief requested by the Debtor. The City of Cambridge also filed an Objection, although it was not named as a defendant. The Debtor has moved to strike its Objection. In response, the City of Cambridge filed a Partially Assented to Motion to Intervene under Fed. R. Bankr.P. 7024 indicating that JASC and Boston Private Bank assent to its intervention.

The Court heard the Debtor’s Motion for a Preliminary Injunction on August 1, 2013. Prior to that date, on July 23, 2013, the Court conducted an evidentiary hearing with respect to the Debtor’s “Emergency Motion to Re-Convert to Chapter 13 and Reinstate Automatic Stay” which was filed on July 21, 2013 in the main case.

The critical issues presented are whether the Debtor has satisfied her burden of demonstrating a likelihood of obtaining confirmation of a Chapter 13 plan, thus warranting conversion of her case from Chapter 7 to Chapter 13, and, in conjunction with a proposed plan attached to her Motion for a Preliminary Injunction, whether the Debtor has satisfied the provisions of 11 U.S.C. § 1325(a)(5) with respect to the objecting parties, thus warranting the entry of an order reinstating the automatic stay. An important predicate legal issue is whether the Debtor is entitled to reconvert her case to Chapter 13 in the first place. See In re Noll, 491 B.R. 550 (Bankr.E.D.Wis.2013).1

At the hearing held on July 23, 2013, the Court afforded the Debtor an opportunity to present evidence and the parties an [655]*655opportunity to cross-examine her. Following the hearing, the Court entered an order denying the Emergency Motion to ReConvert Case to Chapter 13 and Reinstate Automatic Stay. The Debtor, however, filed an Emergency Motion to Alter or Amend Order. On July 24, 2013, the Court granted the Debtor’s Motion to Alter or Amend Order in part and scheduled a further evidentiary hearing on August 1, 2013 as the Debtor filed in accordance with the Court’s order the above-captioned adversary proceeding, a formal motion for injunctive relief, a written proposed amended Chapter 13 plan, and written documentation as to her income from contributions from family members.

Although the Debtor and defendants JASC and Boston Private Bank, as well as the City of Cambridge, dispute the Debt- or’s entitlement to the relief she seeks, the material facts necessary to determine the Motion for a Preliminary Injunction do not present a factual or legal dispute and are evident from a review of the record of proceedings. Accordingly, the Court makes the following findings of fact and rulings of law in accordance with Fed. R. Bankr.P. 7052.

II. BACKGROUND2

A. The Debtor’s Prior Bankruptcy Cases

The Debtor filed a Chapter 13 petition on January 16, 2012. She disclosed two prior Chapter 13 cases on the petition, namely Case No. 09-20729-JNF and Case No. 10-17421-JNF.

The Debtor’s first Chapter 13 ease, which was filed on November 5, 2009, was dismissed on June 24, 2010. In that case, the Debtor amended her Chapter 13 plan twice and Schedule J-Current Income of Individual Debtor(s) twice. In her first Chapter 13 case, she did not disclose any interest in real property located at 20 Upton Street, Cambridge, Massachusetts.

The Court granted the Chapter 13 Trustee’s Motion to Dismiss, which was filed on May 5, 2010. In that motion, the Chapter 13 Trustee represented that she could not recommend confirmation of the Debtor’s plan because the Debtor was in arrears according to the terms of her plan. In its order granting the Chapter 13 Trustee’s motion, the Court stated: “[i]n the absence of any identifiable source of funds from which the Debtor can cure the plan arrears, the Court finds that cause exists to dismiss the case.”

During her first Chapter 13 case, both the Trustees of the Gateview Condominium Trust (the “Gateview Condominium Trust”) and Boston Private Bank filed motions for relief from the automatic stay to foreclose on her liens they hold due to payment defaults with respect to property identified as Unit 7, Gateview Condominium, 2497 Massachusetts Avenue, Cambridge, Massachusetts (the “Property”). The Court approved a stipulation between the Debtor and Boston Private Bank prior to dismissing the Debtor’s case. The dismissal order entered, however, before the Court ruled on the motion for relief from the automatic stay filed by the Gateview Condominium Trust, which became moot.

On July 7, 2010, before the Chapter 13 Trustee was discharged in the first case, the Debtor filed a second Chapter 13 case. In the second case, she amended her Chapter 13 plan and amended Schedules I and J as well. Although she disclosed an [656]*656interest in the Property, the Debtor did not disclose any interest in the property located at 20 Upton Street, Cambridge, Massachusetts.

With respect to the Property, the Gate-view Condominium Trust filed a motion for relief from the automatic stay, alleging arrears in payment of condominium fees as of petition date in the amount of $14,139, as well as postpetition fees and collection costs of $1,924. On October 21, 2010, the Court granted the Gateview Condominium Trust relief from the automatic stay to enforce its statutory lien and to pursue its statutory remedies pursuant to Mass. Gen. Laws ch. 183A, § 6.

Approximately three months later, on January 25, 2011, the Debtor filed an “Emergency Motion to Impose the Automatic Stay” in which she represented the Property is “a restrictive deed low income property” which she “acquired in 2007 through an affordable housing program and Just-A-Start Inc. in conjunction with the City of Cambridge and Massachusetts Department of Housing and Community Development.” As grounds for reimposition of the automatic stay, the Debtor stated that the City of Cambridge was prepared to make a loan to the Debtor to cure the condominium fees due, as well as ar-rearages owed to Boston Private Bank. The Gateview Condominium Trust opposed the Debtor’s Emergency Motion, stating the Debtor had been delinquent in the payment of Condominium fees since September 2007, adding that since October 1, 2009 the Debtor had made only one payment, which was on January 22, 2010 in the amount of $266.00, and that postpetition condominium fees totaled $7,570.00.

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497 B.R. 652, 2013 WL 4482427, 2013 Bankr. LEXIS 3388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-boston-private-bank-trust-co-in-re-harris-mab-2013.